97 F.3d 862 (6th Cir. 1996), 95-5843, Durham v. Nu'Man

Docket Nº:95-5843.
Citation:97 F.3d 862
Party Name:Russell DURHAM, Plaintiff-Appellant, v. Mahdee NU'MAN; Roy Hill; James Burke; Ricky Rhodes, Defendants, Donnie Glover; George Nichols; Becky Ahlers; Nasiruddin Siddiqui; Farahieh Rabbani, Defendants-Appellees.
Case Date:October 09, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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97 F.3d 862 (6th Cir. 1996)

Russell DURHAM, Plaintiff-Appellant,


Mahdee NU'MAN; Roy Hill; James Burke; Ricky Rhodes, Defendants,

Donnie Glover; George Nichols; Becky Ahlers; Nasiruddin

Siddiqui; Farahieh Rabbani, Defendants-Appellees.

No. 95-5843.

United States Court of Appeals, Sixth Circuit

October 9, 1996

Argued June 6, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Nov.

22, 1996.[*]

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[Copyrighted Material Omitted]

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Gail Robinson (argued and briefed), McNally & Robinson, Frankfort, KY, Russell J. Baldani (briefed), Baldani, Rowland & Richardson, Lexington, Ky , for plaintiff-appellant.

E.D. Klatte, Staff Attorney, Cabinet for Human Resources, Office of Main Counsel, Frankfort, KY, Terry L. Morrison (argued and briefed), Cabinet for Human Resources, Frankfort, KY, for defendants-appellees Donnie Glover, Becky Ahlers.

William T. Haynes, Jr., Emily A. Hoffman (argued and briefed), Cathleen A. Charters, O'Bryan, Brown & Toner, Louisville, KY, for defendant-appellee George Nichols.

Michael R. Greene (argued and briefed), Fischer, Thomas, Brophy & Shake, Louisville, KY, for defendant-appellee Nasiruddin Siddiqui.

Gregory J. Bubalo, Douglas C. Ballantine (argued and briefed), Ogden, Newell & Welch, Louisville, KY, for defendant-appellee Farahieh Rabbani.

Before: MERRITT and COLE, Circuit Judges; DUGGAN, District Judge [**].

MERRITT, J., delivered the opinion of the court, in which COLE, J., joined. DUGGAN, D.J. (p. 870), delivered a separate opinion concurring in part and dissenting in part.

MERRITT, Circuit Judge.

Plaintiff Russell Durham appeals the District Court's grant of summary judgment for the five defendants in this 42 U.S.C. § 1983 suit arising out of an August, 1990, assault by hospital security officers at Kentucky's Central State Hospital. There are three sets of defendants: the nurse and hospital security officer who witnessed the beating and did nothing to stop it; the two doctors who treated the plaintiff after the beating but did not diagnose his broken arm; and the administrator of the hospital who, plaintiff claims, did not have sufficient policies to prevent violent altercations, understaffed the hospital's wards housing potentially violent patients, and failed to train the hospital staff to deal with such patients.

As to the nurse and security officer who failed to try to stop the beating, the District Court granted summary judgment because the cases that have held that a failure to intervene may be a violation of § 1983 have dealt only with police and correctional officers, not state mental health workers in a hospital for the criminally insane. The Court believed that the cases, therefore, do not "clearly establish" the constitutional duty of these defendants to try to stop the beating.

As to the second set of defendants, the treating physicians, the District Court held that the plaintiff had failed to satisfy both the objective and subjective components of the "deliberate indifference" standard by which these violations are to be judged.

As to the last defendant, the administrator of the Central State Hospital, the District Court held that there was no evidence that the defendant had implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending employees, and therefore summary judgment was appropriate.


Russell Durham was committed to Eastern State Hospital in February 1990 because he had been found incompetent to stand trial for assault. He was transferred to Central State Hospital in August 1990. Prior to the beating, the plaintiff was in seclusion and was shackled with a "saddle" or belt restraining him at the wrists and legs. He was placed in Unit S, the unit designated for the more unruly patients. Durham had been shackled for two days at the time of the incident. He approached the nurse's station on August 27, 1990, and asked the nurse there, Becky Ahlers, if he could go to the bathroom and then lie down. Apparently Nurse Ahlers had a policy that patients in seclusion could only go to the bathroom during fifteen minutes every

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hour. If the patient cannot wait and relieves himself in his clothes, he is punished.

Nurse Ahlers claims that she did not hear Durham's request, but he claims that she refused his request. The plaintiff then urinated on himself and on the floor in front of the Nurse's station and walked back down the hall to the activity room, tracking urine with him as he went.

Mahdee Nu'Man, one of the Hospital Security Officers, and Nurse Ahlers determined that Durham should be made to clean up the urine. Durham refused to clean up the urine, and Ahlers ordered Nu'Man to put Durham in seclusion as punishment for not cleaning up his mess. Durham apparently kicked at Nu'Man at this point, and Durham claims that Nu'Man then grabbed him and forced him to the floor. Durham claims that another officer, Ricky Rhodes, repeatedly picked Durham up by his shackles and dropped him back onto the floor. Durham also says he was kicked and kneed. A third officer, Donnie Glover, who admits being present during the incident, denied that Nu'Man or Rhodes kicked or beat Durham at all. He swore that they were only trying to restrain him. Therefore, under Durham's account of the incident, Glover stood by and did nothing while he was beaten by Nu'Man and Rhodes. In addition, officer Roy Hill testified that Glover was actively involved in the incident, and that he assisted in lifting Durham. Nurse Ahlers also testified that she thought that Glover was in the activity room during the incident.

Nurse Ahlers admitted seeing some of the fracas which occurred between Nu'Man, Rhodes and Durham, initially from the monitor at the Nurse's Station, and then later from the doorway of the activity room. Officer Roy Hill testified that Ahlers could see into the activity room during the incident. At no time did Nurse Ahlers or Donnie Glover attempt to put an end to the incident by intervening or by calling for help.

After the incident, Dr. Rabbani was called to attend to Durham. She was the psychiatrist on duty at the time of the incident. When she first saw Durham, she said "My God ... what happened?" Dr. Rabbani sutured the cut over Durham's eye. Nurse Judkins, who was present at the time, testified that Durham told her and Rabbani that his arm was broken. Dr. Rabbani testified that she asked Durham if his arm was in pain, and he said it was not. Apparently Dr. Rabbani did examine his arm even though Durham allegedly denied having pain. Although she noted a linear abrasion, she did not notice any...

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